ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003371

Complaint for Resolution:

Date of Adjudication Hearing: 08/08/2016

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The Complainant has been employed as a Business Development Manager with the Respondent Company from 7^th April 2015. The Complainant was paid €6041.00 Gross per month and she worked 37.5 hours a week.

The Complainant referred a complaint to the Workplace Relations Commission on 17^th May 2016 under the Protected Disclosures Act, 2014 alleging that she had been penalised by the Respondent following a protected disclosure.

Summary of Complainant’s Position.

The Respondent is an authorised insurance company regulated by the Central Bank and is subject to the Central Bank’s code of conduct, including the Consumer Protection Code 2012, the Minimum Competency Code 2011 and the Fitness and Probity Standards.

The Complainant is a certified insurance practitioner. She commenced employment with the Respondent on 7^th April 2015. Her duties included selling the Respondent’s insurance products, developing an annual sales plan and complying on an ongoing basis with the Central Bank of Ireland rules. During her first years of employment a number of issues arose and can be summarised as follows:

• The Respondent had not developed a significant number of products to sell despite what she had been told at interview

• The Respondent Company from time to time entered into arrangements with a UK General Insurance Provider, where terms were agreed, the Respondent took on the risk and the profit from the policies. This UK Company also entered the same policies with other insurance companies in Ireland, some of whom would be in direct competition with the Respondent and the Respondent Company has access to these rates and policies with the other companies, which they should not have access to.

• The Respondent had continued access to the insurance rates between the UK Company and its Irish Competitors and this arose as one of the employees (named) of the Respondent was also an employee of the UK Insurance Company. The Complainant referred to alleged comments made by the Respondent Company at meetings at which the Complainant was present concerning the need “to be careful”.

• The Complainant alleged that during the course of the employment she was asked to assist in revision/constructive rewriting of the Competitor Policies which she believed was contrary to the Fitness and Probity Standards. She stated that she had refused to participate in this and had raised her concerns directly with the named Managing Director of the Company.

• The Complainant also alleged that she was instructed to poach customers of the Schemes function with the UK Insurance Company. The Complainant again made a verbal complaint to the MD.

During this time she stated that she was given to understand that one of the Directors of the Company was unhappy with her performance and that her job was in jeopardy. She was also told that her inability to secure large substantial opportunities was a failure on her part despite the Respondent’s lack of financial rating after the Quinn Insurance collapse was a factor. This was followed by the Setanta Insurance collapse. She stated that following a change of management at the Respondent’s parent company in February 2016 she was fearful for her job.

On commencement of her employment she had been informed that the Respondent had entered into an arrangement with a sister company in Northern Ireland and Scotland. She served 40% of her time servicing clients in Northern Ireland. Each month she sent an email to the MD setting out the days in which she would be servicing the Northern Ireland Clients. This arrangement was put in place by the Respondent she was continuously criticed by the Respondent in relation to the time spent on the Northern clients. She raised issues with the MD at a meeting in December 2015 in relation to her two roles and the workload attached to both. She was also expected to travel to Northern Ireland necessitating a long commute. The Complainant stated that the MD was not happy with her raising these concerns and she is aware that he subsequently spoke to the Northern Ireland Company and he sought to lay the blame on the Northern Ireland Company. However the Respondent MD took no steps to address the Complainant’s health and safety concerns she had raised.

At a team meeting held on 4^th March 2016, which the Complainant joined by telephone from NR Ireland, she alleged that the Financial Controller, Named, spoke to her in a belligerent manner and that she later received an apology. The Complainant also informed the MD on 4^th March 2016 of the dates she would be working in Northern Ireland. However on 11^th March 2016 when she was in Nr Ireland she received a call from the MD who instructed her to cease the work she was doing and to prepare a presentation for 14^th March 2016 for a major customer. The Complainant told the MD that she was not available on the 14^th March 2016. This had occurred previously on 23^rd February 2016. The MD was annoyed. On 9^th March 2016 the MD instructed the Complainant with an instruction which she was unhappy with but compiled on that occasion.

The Complainant attended a meeting with the MD of the Respondent on 16^th March 2016 at which she again voiced her concerns concerning the lack of the Respondent’s own policies to sell. And alleged that the Respondent had a library full of Competitor Policies.

The Complainant was requested to attend a meeting on 18^th March 2016 to discuss her goals in light of ongoing strategy changes. She was not advised there was any disciplinary element to this and was advised to bring anyone with her to the meeting. At this meeting she was subjected to abusive behaviour, as follows:-

• She was accused of playing both sides between the Respondent and the Nr Ireland sister company

• He berated her for not attending the meeting with a major customer on 14^th March 2016

• He told her that he was warning her and when she asked if she was being disciplined the reply was yes and that she would be issued with a warning in writing.

• The Complainant halted the meeting and requested the presence of HR and that she be provided with a copy of the Disciplinary policy.

Following this meeting the Respondent sought to misrepresent the meeting stating it was not a disciplinary meeting and that no warning would be issued. However the Respondent also stated that failure to carry out a legitimate instruction from the MD could be a disciplinary matter.

This caused stress on the Complainant and she was on certified sick leave due to a number of stated problems.

The Complainant issued a Solicitor’s letter to the Respondent on 7^th April 2016 and that the actions of the MD in attempting to discipline her constituted penalisation under the 2014 Act. The Respondent responded by Solicitor’s letter on 20^th April 2016. She was also informed of the Respondent’s Whistleblowing policy but she alleged she had not been provided with this until she commenced sick leave on 24^th March 2016.

The Complainant and her legal representative argued that in accordance with Section 5 (8) of the Act it is for the Respondent to rebut the presumption that these disclosures are protected disclosures. They argued that these protected disclosures triggered retaliatory acts on the part of the Respondent. They also referenced the Employment Equality Act, 1998 at Section 74 and referenced a number of Labour Court Decisions in support of their arguments.

Summary of Respondent’s Position.

The Respondent Company is an authorised insurance company which is regulated by the Central Bank of Ireland. It commenced trading in 2002, is based in Dublin and is part of a named UK Insurance Group which consists of three insurance distribution businesses in the UK, Bermuda and Dublin. The Parent Company, named, is a Bermuda based investment holding company.

During 2015 there was a change in strategic direction to enable the Respondent Company to become a stand alone business. It was decided to commence writing more non-group business by developing a number of partnerships with selected brokers in the Ireland and UK markets. As part of this strategy the Complainant was recruited as its first Business Development Manager in April 2015 and the Company name was subsequently rebranded to the current Respondent’s name to help create a unique brand for the business. The Complainant is an experienced insurance broker with 14 years’ experience in the Irish market.

The Complainant was interviewed in January 2015 by both the MD of the Respondent Company and by a named Director of a named Company in Northern Ireland. This company is separate and is also part of the UK Insurance Group. It was agreed that the Complainant would work 60% of her time with the Respondent and 40% with the Company in Northern Ireland. Her Contract of employment was with the Respondent as it was the intention that her role would develop into a fulltime position. The Complainant was also provided with the UK Employee Handbook and Policies and Procedures including a Whistleblowing Policy and a Grievance Procedure. Following the name change the Respondent Company issued their own Employee Handbook which also included a whistleblowing policy. This was issued to all employees in March 2016.

The Complainant has been absent from work on 21^st March 2016 and she issued a Solicitor’s letter on 7^th April 2016. In this letter the Complainant made a number of allegations in relation to the MD of the Respondent Company. The Respondent replied to all these by letter dated 220 the April. The Complainant issued a complaint to the WRC on 17^th May 2016.

Schedule 2 of the Act sets out the provisions in relation to redress for contravention of Section 12(1) of the Act. The Complainant made two allegations against her Employer in the Complaint Form submitted to the WRC. the first alleges that that the Complainant had been instructed to assist with concealing that a UK Insurance Company products were being used by the Respondent as its own products and that this was being done without the agreement of the UK Company. The Complainant had traipsed this with the Respondent on a number of occasions. The second allegation that the Complainant had been instructed by the Respondent to obtain mandates from customers of the Schemes function within the UK Company which was not agreed with the UK Company

In Relation to allegation one the Respondent stated that part of the Complainant’s Job Description, provided, was to maintain detailed awareness of competitor activity, products and pricing and to play a lead role in the implementation of a focused and targeted approach to new business. The Complainant also played an active role in developing new products and built up the Company Product Library. This involved sourcing specimen policy documents from the Group which was in the public domain. This was being used for the benefit of the Group and consent had been obtained. The Respondent has a whistleblowing policy yet the Complainant did not refer her complaint under that policy.

In relation to the second allegation this is refuted and the Respondent stated that the Respondent has an existing agreement with the UK Insurance Company (named) providing them with delegated authority to underwrite property, travel and other business schemes and the Respondent acts as the capacity provider for the business. In turn the UK Company has a binding agreement with the Respondent to manage these schemes in accordance with the terms of the agreement.

The Respondent argued that these allegations did not fall within any of the eight categories of relevant wrongdoing contained in Section 5 of the Act and therefore are not protected disclosures. The alleged Act of Penalisation contained in the complaint form which is unclear seems to relate to the meeting of 18^th March 2016. This meeting was prearranged with the Complainant to coincide with her time in Dublin. This was arranged to review the Complainant’s objectives. It was not a disciplinary meeting and no sanction was ever issued to the Complainant. The Respondent did provide feedback to the Complainant in relation to her refusal to attend the meeting of 14^th March 2016 and that her failure to carry out a reasonable instruction was a serious matter. The Respondent outlined that this was feedback and when the Complainant asked if this was a disciplinary matter, she was told no but that she should take note and there should be no reoccurrence. The Complainant became angry and demanded the presence of someone from HR. The Complainant made a decision to leave the meeting. . The Respondent provided confirmation of the purpose of this meeting in emails dated 18^th March 2016 and again on 22^nd March 2016 – copies provided.

There are two issues to be determined, Firstly has the Complainant made a Protected Disclosure under the Act and if she has whether she has been penalised by the Respondent and that the penalisation arises for making a protected disclosure.

The Complainant stated that she had made a number of verbal complaints to the Respondent. However the Complainant failed to produce any evidence of such complaints being made prior to the Complainant’s Solicitor writing to the Respondent on 7^th April 2016 in which the Solicitor alleges a number of issues and also alleges that these are protected disclosures and that this resulted in penalisation of the Complainant.

I note that from 10^th August 2015 the Complainant communicated by email with her colleagues, including the MD in relation to work related issues. There was no explanation given by the Complainant as to why she did not put in writing “protected disclosure” during the course of her employment from 2015.

I note that the Respondent denies that the Complainant raised any issue of concern either with the MD or any other person working in the Company.

I note that the Respondent has a Whistleblowing Policy in the Employee Handbook which was circulated to all employees in March 2016. This is a comprehensive Policy Document and provides that complaints should be addressed in writing to the Chairman of the Board of Directors of the Respondent Company. The Complainant did not utilise this Policy and she did not make a complaint until her Solicitor wrote to the Respondent Company on 7^th April 2016.

Section 9 of the Act does allow for a disclosure to a legal advisor, in this case the Complainant’s Solicitor, who did write to the Respondent on 7^th April 2016

The alleged penalisation of the Complainant is alleged to have occurred on 18^th March 2016 at a meeting between the Complainant and the MD of the Respondent Company. This is prior to the alleged protected disclosures contained in the letter dated 7^th April 2016.

Decision CA-00004617-001

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and in view of my Findings above I declare the Complainant is not well founded. The Complainant did not made a protected disclosure as defined by the Act until 7^th April 2016 and the Complainant has not been penalised by the Respondent following the alleged protected disclosure by the Complainant’s Solicitor as provided for by Section 9 of the Act, on 7^th April 2016.

There was no evidence presented at the Hearing that the Complainant had been penalised by the Respondent following the issuing of the letter dated 7^th April 2016.

Date:   20^th October 2016